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Morales v. Berk Trade School
Citations: 91 A.D.2d 525; 456 N.Y.S.2d 398; 1982 N.Y. App. Div. LEXIS 19344
Court: Appellate Division of the Supreme Court of the State of New York; December 8, 1982; New York; State Appellate Court
An order from the Supreme Court of New York County, issued on January 5, 1982, vacated a prior order of preclusion against the plaintiff for failing to serve a supplemental bill of particulars. The vacatur is conditioned upon the plaintiff's attorney paying the defendant $500 in costs within 30 days of the order's entry. If the plaintiff fails to comply, the order will be reversed, and the preclusion orders will be reinstated. The defendant is awarded $50 in costs and disbursements related to the appeal. The plaintiff’s counsel attributed the failure to serve the supplemental bill to a misunderstanding regarding a previous order and claimed he was unaware of the motion for the supplemental bill. The court noted that the language of the original preclusion order did not clarify this misunderstanding. Additionally, the plaintiff's attorney had experienced significant health issues, which may have contributed to the oversight during a period of reduced work activity and reliance on staff. The court found the plaintiff's affidavit detailing the merits of the case compelling and noted that the injury claimed was substantial, with no demonstrated prejudice to the defendant. The court emphasized that, despite the lapse, discretion exists to vacate the default given the circumstances. However, it concluded that the defendant's additional effort and expenses warranted a higher sanction than previously imposed, leading to the modification of the costs condition. The decision was concurred by Judges Sandler, Asch, and Silverman.